Hоw dо we knоw the person is feeling feаr аt the beginning of the story (A)?
Yоur new client Frаgmа Limited is а cоmpany active in the field оf training in relation to beauty. It organises educational weekends for individual beauticians and bespoke in-house events at larger chains of beauticians. It has done so for approximately 6 years (since June 2020) without complaint, but until 2 years ago (on 1 February 2024) had not progressed to apply for any trade marks. At this stage it applied to register the word FRAGMA as a trade mark in relation to “educational services; training; organisation of events, seminars and conferences; cultural events; runway shows” in class 41. This application was opposed by Big Beauty BV who (as the name would suggest) are a multinational beauty business with its corporate headquarters in the Netherlands. One of the brands in their luxury line is FRAGMENT, which is an eyeshadow brand. This is a brand which is available in many markets around the world, including the UK and EU, and it is mainly sold through concessions in department stores. They do however have 1 flagship store in London and research revealed that at one time they intended to branch out via franchised stores where they would teach third party owners how to run the beauty stores and would then sell the products on to the franchise owners: this did not happen in the end. Big Beauty opposed Fragma’s application based upon all of the rights listed below, in each case asserting s.5(2)(b), s.5(3) and s.5(4)(a) of the Trade Marks Act 1994 based upon the full specifications. In the case of s.5(3), it did so solely on the basis of an allegation that the use would take advantage of the repute in the mark, and alleged repute across the full specification. TM Number Application date Registration date Mark Classes 3256 890 1 December 1995 8 August 1996 FRAGMENT 3 9446 7891 5 June 2011 11 June 2012 FRAGMENT 3, 35, 41 95513523 30 May 2017 12 Feb 2018 FRAGMENT 3, 18, 25, 35, 41, 44 The specification in the relevant classes on each registration is identical, as follows: Class 3: Non-medicated cosmetics and toiletry preparations; Non-medicated dentifrices; Perfumery, essential oils; Bleaching preparations and other substances for laundry use; Cleaning, polishing and abrasive preparations Class 18: Bags, umbrellas Class 25: Clothing Class 35: Retail services connected with the sale of non-medicated cosmetics and toiletry preparations, non-medicated dentifrices, perfumery, essential oils, bleaching preparations and other substances for laundry use, cleaning, polishing and abrasive preparations Class 41: Education; Providing of training; Entertainment; Sporting and cultural activities Class 44: Medical services: Hygienic and beauty care for human beings or animals The earlier rights do not, however, all cover the same classes. Fragma’s previous advisors requested proof of use of the registrations, and the case has come to you at this stage as a witness statement from Big Beauty BV’s in-house counsel. Your review of the materials (which runs to 500 pages) identifies the following key points in how the witness deals with the evidence: The goods and services in the specification are collectively called “The Fragment Goods and Services” but you conclude that the only goods on which genuine use is shown are “eyeshadows”; Invoices provided show sales of eyeshadow palettes in the UK to department stores by reference to the words FRAGMENT, but there are only 20 invoices scattered between 2015 and 2025 and they amount for a total of £6000 value; With all that said, the turnover figures and the advertising figures given for The Fragment Goods and Services are large: £500M over the last 10 years in sales, and marketing amounting to £67M. Those figures are given without breakdown by year, and are said to be in respect of the specifications as a whole. Elsewhere in the witness statement the witness talks about global marketing and global promotion, and so it is not clear on the face of the witness statement whether the turnover and marketing are just for the UK. The evidence has not yet been admitted into the proceedings, but assuming it is shortly the client wants to have an idea what to do next and what your thoughts are on the evidence and any next steps. Please therefore provide a report on: Your views on whether the evidence will support the claims made by Big Beauty and its admissibility; What the likely outcome is in the opposition? What steps will follow in the opposition and any further steps or action which you recommend Fragma takes and why you propose those steps Candidates are not expected to give any analysis in their answers to whether the evidence is sufficient to show genuine use for “eyeshadows” – as noted above, the evidence is taken to be sufficient to show genuine use for ‘eyeshadows” but not other goods or services.